6.  Early in the morning of 13 October 2005 law-enforcement agencies in the town of Nalchik, in the Republic of Kabardino-Balkariya, were attacked by a number of heavily armed persons, who appear to have been local insurgents. The agencies included the Republican Department of the Ministry of the Interior, Centre T. of the Main Department of the Ministry of the Interior, various district departments of the Ministry of the Interior, the Special Purpose Police Unit of the Republican Ministry of the Interior, various checkpoints of the Traffic Police, the Republican Department of the Federal Security Service, the Republican Department of the Federal Service for the Execution of Penalties, the office of the Border Guard Service of the Federal Security Service and a few privately owned weapons shops. According to the Government, there were over two hundred and fifty participants in the attack.
7.  The ensuing fight between the governmental forces and the insurgents lasted until at least 14 October 2005.
8.  The applicants submitted that they were relatives of participants in the attack who died on 13 and 14 October 2005 or shortly afterwards (see the annex listing the applicants’ family connections to the deceased persons).
9.  The Government did not dispute this claim, with the exception of the nineteenth applicant, Mrs Zhanna Fyodorovna Ifraimova, who, in their view, was not in any way related to the deceased Mr Ruslan Borisovich Tamazov.
10.  According to the nineteenth applicant’s initial statement, the deceased Mr Ruslan Borisovich Tamazov was her husband. She later changed this submission, stating that they were not officially married but had lived together since February 2005. At the time of the events in October 2005 she was eight months pregnant. The nineteenth applicant has submitted a copy of a birth certificate issued on 9 July 2008 in the name of S.T., born on 8 December 2005. The certificate names Mr Ruslan Borisovich Tamazov as the girl’s father and the nineteenth applicant as her mother.
11.  According to the information initially provided by the Government, on 13 and 14 October 2005 their forces successfully repelled the attack and killed eighty-seven local insurgents. The Government did not specify the names of those killed.
12.  The Government also stated that on 14 October 2005 they arrested Mr Aslan Yuriyevich Bagov (one of the two nephews of the fiftieth applicant), who had gunshot wounds to the head and chest. He died in prison on 23 October 2005.
13.  On 18 October 2005 Mr Kazbulat Betalovich Kerefov (one of the seventeenth applicant’s sons and a participant in the attack of 13‑14 October 2005) fired shots at police officers manning a local checkpoint and was killed when the officers returned fire.
14.  In their observations on the admissibility of the case, the Government stated that the authorities had killed a total of ninety-five insurgents in the anti-terrorist operations mounted in response to the attack of 13 October 2005.
15.  In essence, they acknowledged that all of the deceased referred to by the applicants were among those killed by the authorities.
16.  It appears that on 13 October 2005 the authorities instituted criminal proceedings no. 25-78-05 in connection with the attack in Nalchik.
17.  In the course of the investigation it was established that between 1999 and February 2005 a group of individuals, including A. Maskhadov, Sh. Basayev, I. Gorchkhanov, A. Astemirov, Abu-Valid Khattab and Abu‑Dzeit, had formed a terrorist group. It was this group that organised the attack. Thirty-five law-enforcement officers and fifteen civilians were killed, whilst one hundred and thirty-one law-enforcement officers and ninety-two civilians were injured. Massive damage was done to property.
18.  The applicants did not have any procedural status in the criminal proceedings in case no. 25-78-05.
19.  Immediately following the attack, on 13, 20, 21 and 25 October 2005 an unspecified number of persons (including some of the applicants) signed collective petitions requesting various officials, including the prosecutors, to return the bodies for burial.
20.  Between the end of October 2005 and until at least April 2006 the applicants received replies from the prosecution and other authorities informing them that they would receive definite answers once the investigation into the events had been completed.
21.  Attempts by some of the applicants to challenge these replies in the domestic courts were unsuccessful, as they were rejected as premature both at first instance and on appeal.
22.  On 13-14 April 2006 the investigation authority terminated the criminal proceedings in respect of the ninety-five deceased insurgents on account of their deaths. An individual decision had been taken in respect of each of them, describing the degree and character of their individual involvement and concluding that these persons had taken part in the attack and died as a result of the ensuing fight. It appears that the deceased referred to by the applicants were among those concerned by this decision.
23.  The Prosecutor General’s Office notified the applicants of the above decisions on 14 April 2006, but no copies of the decisions in question were attached to the notifications.
24.  Some of the applicants applied to the domestic courts in connection with the authorities’ failure to provide them with copies of the decisions of 13-14 April 2006. As a result of the proceedings, most of these applicants were furnished with a copy of the relevant decision. However, they were refused standing to take part in the criminal proceedings against the deceased as their official representatives or to have the deceased’s personal belongings returned to them.
25.  In the Strasbourg proceedings the Government submitted copies of the decisions of 13-14 April 2006 in respect of each of the applicants’ relatives.
26.  According to the Government, ninety-five corpses of the presumed terrorists were cremated on 22 June 2006. According to the applicants’ submissions, it appears that they first learned of the cremations from the Government’s observations in the present case.
27.  According to the Government, the cremations took place pursuant to a decision not to return the bodies of the deceased to their families, dated 15 May 2006. In contrast to the individual decisions of 13-14 April 2006, the decision of 15 May 2006 referred to the deceased persons collectively. The decision stated, in particular:
“... the head of investigation group ... [official S.], having examined the materials in case file no. 25-78-05, established: ... [that] in the course of the counter-terrorist special operation aimed at tackling the attack, 95 terrorists were eliminated, namely:
 [The decision names among the deceased all of the persons referred to by the applicants, see the list in the annex.]
At present all forensic expert examinations, including molecular genetic examinations, involving ... the corpses of the deceased terrorists, have been finalised and their identities have been established by way of proper procedure.
By decisions of 13-14 April 2006 the criminal proceedings in respect of these 95 persons, who had committed ... the attack on various sites and law-enforcement agents of the town of Nalchik ... were discontinued on account of their deaths, under Article 27 part 1 subpart 2 and Article 24 part 1 subpart 2 of the Code of Criminal Procedure.
Pursuant to section 14(1) of the Federal Interment and Burial Act (Law no. 8-FZ): “persons against whom a criminal investigation concerning their terrorist activities has been closed on account of their death following interception of the said terrorist act shall be interred in accordance with the procedure established by the Government of the Russian Federation. Their bodies shall not be handed over for burial and the place of their burial shall not be disclosed.”
Pursuant to part 3 of Decree no. 164, “On interment of persons whose death was caused by the interception of terrorist acts carried out by them”, approved by the Government of the Russian Federation on 20 March 2003, “the interment of [these] persons shall take place in the locality where death occurred and shall be carried out by agencies specialising in funeral arrangements, set up by organs of the executive branch of the subjects of the Russian Federation or by organs of local government ...”
[In view of the above, official S. decided to:]
28.  The Government alleged that the authorities had notified the applicants of the decision of 15 May 2006, but acknowledged that no copy of that decision had been provided to them.
29.  It appears that on several occasions the Prosecutor General’s Office informed the applicants, in substance, of the refusal to return the bodies. It does not appear that the applicants were furnished with a copy of the decision of 15 May 2006.
30.  The applicants submitted that they had first obtained a copy of the decision of 15 May 2006 in May 2007, along with the Government’s observations on the admissibility of the case. They also indicated that they had learned about the cremation of the corpses of their deceased relatives in September 2007 (see paragraph 26 above).
31.  The applicants’ initial attempts to obtain judicial review of the decisions of 13-14 April and 15 May 2006 were unsuccessful, as the courts refused to examine their arguments.
(a)  Proceedings before the Constitutional Court
32.  Some of the applicants contested the legislation governing the interment of terrorists before the Constitutional Court. Their initial complaints were rejected as premature. Eventually, the complaints of the thirteenth and twenty-fourth applicants were accepted for examination.
33.  On 28 June 2007 the Constitutional Court delivered a judgment (no. 8-P) in which, in essence, it rejected their complaints alleging that section 14(1) of the Interment and Burial Act and Decree no. 164 of the Government of the Russian Federation of 20 March 2003 were unconstitutional. The ruling stated, in particular, that the impugned legal provisions were, in the circumstances, necessary and justified. The court reached the following conclusions regarding the legitimate aims and necessity of the legislation in question:
“... At the same time, the interest in fighting terrorism, in preventing terrorism in general and specific terms and in providing redress for the effects of terrorist acts, coupled with the risk of mass disorder, clashes between different ethnic groups and aggression by the next of kin of those involved in terrorist activity against the population at large and law-enforcement officials, and lastly the threat to human life and limb, may, in a given historical context, justify the establishment of a particular legal regime, such as that provided for by section 14(1) of the Federal Act, governing the burial of persons who escape prosecution in connection with terrorist activity on account of their death following the interception of a terrorist act ... Those provisions are logically connected to the provisions of paragraph 4 of Recommendation 1687 (2004) of the Parliamentary Assembly of the Council of Europe on combating terrorism through culture, dated 23 November 2005, in which it was stressed that extremist interpretations of elements of a particular culture or religion, such as heroic martyrdom, self-sacrifice, apocalypse or holy war, as well as secular ideologies (nationalist or revolutionary) could also be used for the justification of terrorist acts. 3.2. Action to minimise the informational and psychological impact of the terrorist act on the population, including the weakening of its propaganda effect, is one of the means necessary to protect public security and the morals, health, rights and legal interests of citizens. It therefore pursues exactly those aims for which the Constitution of the Russian Federation and international legal instruments permit restrictions on the relevant rights and freedoms.
The burial of those who have taken part in a terrorist act, in close proximity to the graves of the victims of their acts, and the observance of rites of burial and remembrance with the paying of respects, as a symbolic act of worship, serve as a means of propaganda for terrorist ideas and also cause offence to relatives of the victims of the acts in question, creating the preconditions for increasing inter-ethnic and religious tension.
In the conditions which have arisen in the Russian Federation as a result of the commission of a series of terrorist acts which produced numerous human victims, resulted in widespread negative social reaction and had a major impact on the collective consciousness, the return of the body to the relatives ... may create a threat to social order and peace and to the rights and legal interests of other persons and their security, including incitement to hatred and incitement to engage in acts of vandalism, violence, mass disorder and clashes which may produce further victims. Meanwhile, the burial places of participants in terrorist acts may become a shrine for certain extremist individuals and be used by them as a means of propaganda for the ideology of terrorism and involvement in terrorist activity.
In such circumstances, the federal legislature may introduce special arrangements governing the burial of individuals whose death occurred as a result of the interception of a terrorist act in which they were taking part. ...”
34.  The ruling further noted that the application of the measures prescribed in the legislation could be regarded as justified if proper procedural safeguards, such as effective judicial review, were in place to protect individuals from arbitrariness. The court noted that Articles 123-127 of the Code of Criminal Procedure provided for such review (see paragraph 87 below).
35.  In sum, the Constitutional Court upheld the impugned provisions as being in conformity with the Constitution but at the same time interpreted them as requiring that the authorities refrain from burying bodies unless a court had confirmed the competent authority’s decision. It reasoned as follows:
“... The constitutional and legal meaning of the existing norms presupposes the possibility of bringing court proceedings to challenge a decision to discontinue, on account of the deaths of the suspects, a criminal case against or prosecution of participants in a terrorist act. Accordingly, they also presuppose an obligation on the court’s part to examine the substance of the complaint, that is, to verify the lawfulness and well-foundedness of the decision and the conclusions therein as regards the participation of the persons concerned in a terrorist act, and to establish the absence of grounds for rehabilitating [the suspects] and discontinuing the criminal case. They thus entail an examination of the lawfulness of the application of the aforementioned restrictive measures. Until the entry into force of the court judgment the deceased’s remains cannot be buried; the relevant State bodies and officials must take all necessary measures to ensure that the bodies are disposed of in accordance with custom and tradition, in particular through the burial of the remains in the ground ... or by [cremation], individually, if possible, and to ensure compliance prior thereto with the requirements concerning the identification of the deceased ... and of the time, location and cause of death...”
36.  Judge G.A. Gadzhiyev issued a separate opinion in which he agreed that the impugned provisions were in conformity with the Constitution but held a different view as to how they should be interpreted. The opinion stated as follows:
“... if the relevant law-enforcement agencies find, as a result of a preliminary investigation, that a terrorist act has been committed and that a given person was involved, but the criminal proceedings against that person ... are discontinued on account of his or her death following interception of the terrorist act, and if they then conclude that the decision to return the body to the family for burial is capable of threatening public order and peace and the health, morals, rights, lawful interests and safety of others, they are entitled to take a decision refusing to hand over the body and applying special arrangements for burial.
At the same time, in the event of a refusal to return the body of an individual whose death occurred as the result of the interception of a terrorist act committed by him, the authorities competent to take a decision concerning the burial must secure compliance with all the requirements concerning the establishment of the deceased’s identity, the time and place of death, the cause of death, the place of burial and the data necessary for the proper identification of the grave (a given location and number). The burial must take place with the participation of the relatives, in accordance with custom and tradition and with humanitarian respect for the dead. The administrative authorities of a State governed by the rule of law must respect the cultural values of a multi-ethnic society, transmitted from generation to generation. ...”
37.  Judge A.L. Kononov issued a dissenting opinion in which he described the legislation in question as incompatible with the Constitution. In particular, he noted:
“... The impugned norms banning the return of the deceased’s bodies to their relatives and providing for their anonymous burial are, in our view, absolutely immoral and reflect the most uncivilised, barbaric and base views of previous generations ...
The right of every person to be buried in a dignified manner in accordance with the traditions and customs of his family hardly requires special justification or even to be secured in written form in law. This right is clearly self-evident and stems from human nature as, perhaps, no other natural right. Equally natural and uncontested is the right of every person to conduct the burial of a person who is related and dear to them, to have an opportunity to perform one’s moral duty and display one’s human qualities, to bid farewell, to grieve, mourn and commemorate the deceased, however he may be regarded by society and the state, to have the right to a grave, which in all civilisations represents a sacred value and the symbol of memory. ...”
(b)  Subsequent proceedings
38.  After the Constitutional Court’s judgment of 28 June 2007 the domestic courts apparently changed their approach and agreed to review the formal lawfulness of the decisions of 13-14 April and 15 May 2006.
39.  Three applicants (nos. 12, 21 and 33) were able to obtain a copy of the decisions of 13-14 April 2006 concerning their deceased relatives, but did not pursue any proceedings in this connection or in connection with the decision of 15 May 2006.
40.  Fifteen applicants (nos. 1, 2, 4, 8, 18, 25, 26, 32, 34, 35, 37, 39, 42, 43 and 44) did not claim or receive a copy of the decisions of 13-14 April 2006 and did not institute proceedings in connection with any of the decisions in this case.
41.  The remaining applicants, with the exception of three (nos. 39, 42 and 43) obtained a copy of the decisions of 13-14 April 2006 concerning their relatives and brought court proceedings to contest them.
42.  Seven applicants (nos. 3, 15, 17, 30, 38, 41 and 49; see table 1 in the annex), after a few sets of proceedings, obtained a favourable judgment, issued at final instance by the Supreme Court of the Republic of Kabardino‑Balkariya, which quashed both the decisions of 13‑14 April 2006 and the decision of 15 May 2006 as unlawful. In respect of the decisions of 13-14 April 2006, the court noted that these decisions had failed to take account of the recent amendments to Article 205 of the Criminal Code (see paragraph 76 below) and remitted the case to the investigating authority for fresh examination. The decision of 15 May 2006 was quashed in so far as it relied on the decisions of 13‑14 April 2006 and also because it had not been taken by a competent official. According to the applicants, these judgments remained without enforcement.
43.  It appears that the domestic courts subsequently changed their position in connection with the requirement to take account of the amendments to Article 205 of the Criminal Code and began quashing the decisions by way of supervisory review (see paragraph 45 below).
44.  Nineteen applicants (nos. 5, 6, 9, 10, 11, 13, 14, 16, 19, 20, 22, 24, 27, 28, 31, 40, 45, 46, 50; see table 2 in the annex), after several sets of proceedings, obtained a favourable judgment, issued at final instance by the Supreme Court of the Republic of Kabardino-Balkariya. These judgments concerned only the decisions of 13-14 April 2006, and quashed them as unlawful. The court noted that the decisions failed to take account of the recent amendments to Article 205 of the Criminal Code and remitted the case to the investigating authority for fresh examination. These applicants did not apparently bring separate proceedings in respect of the decision of 15 May 2006. According to the applicants, the judgments remained without enforcement.
45.  According to the information submitted by the Government in connection with the proceedings brought by the thirteenth applicant, a fresh examination of the case in the lower courts resulted in a final decision of 3 November 2007 upholding the decision of 13-14 April 2006 in full.
46.  In the domestic proceedings three applicants (nos. 7, 23 and 47; see table 3 in the annex) were expressly denied a copy of the decisions of 13‑14 April 2006 concerning their deceased relatives and, as a result, the competent courts were unable to review the lawfulness of the decisions of 13-14 April and 15 May 2006. The Supreme Court of the Republic of Kabardino-Balkariya specifically stated in their respective judgments that the investigating authority had unlawfully refused to furnish the applicants and the courts with a copy of the decisions of 13-14 April 2006 and to provide access to the relevant case-file materials in respect of these applicants’ deceased family members. In their submissions the respondent Government explained that the evidence collected by the investigation in respect of the deceased family members of the applicants in question had also been used in the criminal proceedings against the surviving participants in the attack, and that the refusal in question had been motivated by the need to preserve the integrity of these criminal proceedings.
47.  Two applicants (nos. 29 and 36; see table 4 in the annex) obtained a copy of the decisions of 13-14 April 2006 in respect of their deceased relatives and unsuccessfully contested them in court. The Supreme Court of the Republic of Kabardino-Balkariya rejected their appeals and upheld the decisions as lawful. These applicants were subsequently successful in obtaining a favourable judgment from the same court, declaring the decision of 15 May 2006 unlawful because it had not been taken by a competent official.
48.  The forty-eighth applicant, Mrs Oksana Nikolayevna Daova obtained a copy of the decisions of 13-14 April 2006 in respect of her brother Mr Valeriy Nikolayevich Tleuzhev and her husband Mr Zurab Nazranovich Daov and unsuccessfully contested them in court. By final judgments of 6 February 2007 and 8 July 2008 the Supreme Court of the Republic of Kabardino-Balkariya rejected her appeals in respect of her brother and husband respectively. It does not appear that she brought any court proceedings in respect of the decision of 15 May 2006.
49.  The Government argued that the applicants could have obtained copies of the decisions of 13-14 April 2006 and relevant case-file documents whenever they wished.
50.  The forty-eighth applicant indicated that only some of the applicants had been provided with such access.
51.  According to the applicants who took part in the identification of the bodies, for several days following the events of 13 and 14 October 2005 the corpses were kept in the town morgue and other locations, in wholly unsatisfactory conditions. In particular, the bodies gave off an intense smell owing to the lack of proper refrigeration and were chaotically piled on top of each other.
52.  On an unspecified date Mrs G.G. Kushkhova, apparently a relative of the thirtieth applicant, complained in writing that the bodies had been piled up and stored at street temperature, noting that some of the corpses were decomposing and giving off an intense putrid smell. On an unspecified date Mrs F.N. Arkhagova, the forty-second applicant, stated that she had seen the bodies on the ninth day after the events in question and that some of them were decomposing and contained worms. Mr Kereshev, the husband of the sixteenth applicant, said that when he had taken part in the identification procedure on 15 October 2005, the bodies had been naked and piled on top of each other. Similar written observations were made by Mr Alakayev, the fifth applicant’s husband, and Mrs Sabanchiyeva, the first applicant.
53.  The applicants produced a video recording in support of their submissions, apparently filmed inside refrigerator wagons and confirming that the bodies were naked and that some of them were piled on top of one another.
54.  In response to an enquiry by the Court dated 4 November 2005, the Government submitted that the bodies of those who had attacked the town had been kept at “premises specifically designed for the long-term storage of corpses and containing all the necessary equipment”.
55.  In response to a letter from the applicants requesting an explanation for the appalling storage conditions, the Prosecutor General’s Office stated in a letter of 14 April 2006 that until a procedural decision in respect of the corpses had been taken they had been kept in specially equipped rooms, in refrigerated chambers set to the appropriate temperature. The authorities did not disclose the locality where the bodies were stored.
56.  In their observations on admissibility of 22 May 2007, the Government explained that following the events the corpses had initially been sent to the Nalchik morgue. They had then been stripped and the clothes sent for forensic expert examination. Thereafter all the corpses had been placed in two refrigerated wagons, equipped with all necessary storage facilities, and sent to the town of Rostov-on-Don for genetic examination. The Government also acknowledged that immediately after the attack no facilities had been available to keep the bodies and that this was probably what had been filmed in the recording submitted by the applicants.
57.  There is no information in the applicants’ submissions which could confirm the participation of four applicants, nos. 2, 8, 26 and 32, in the relevant identification procedure.
58.  Thirteen applicants (nos. 4, 5, 6, 11, 14, 16, 30, 33, 36, 41, 44, 46 and 50) did not participate in the identification procedure in person because the relevant corpses were identified by someone else.
59.  The remaining thirty-three applicants (nos. 1, 3, 7, 9, 10, 12, 13, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 27, 28, 29, 31, 34, 35, 37, 38, 39, 40, 42, 43, 45, 47, 48 and 49) submitted hand-written statements confirming their personal participation in the identification procedure (see table 5 in the annex).
60.  According to the applicants, they had access to the bodies both in the Nalchik town morgue and in two refrigerator wagons parked on a plot of land belonging to the Ministry of the Interior. Provision of access to the bodies was random, as not everyone who wanted to take part in the identification process was admitted. In some cases the provision of access was not properly documented.
61.  Since the provision of access was limited, the relevant facilities were usually surrounded by crowds of relatives of the deceased.
62.  The Government partly disputed the applicants’ submissions. They referred to the protocols of identification, confirming that all four applicants listed in paragraph 57 and the forty-forth applicant, Mrs Lyubov Mikhaylovna Gonibova, had taken part in the identification. They contested the personal participation in the identification procedure of the ninth (Mrs Anzhelika Yuryevna Arkhestova), the seventeenth to the twentieth applicants (Mr Betal Muradinovich Kerefov, Mr Magomed Khassimovich Attoyev, Mrs Zhanna Fyodorovna Ifraimova and Mrs Aysha Ismailovna Chagiran) and the thirty-ninth applicant (Mr Karalbi Masadovich Amshokov). They confirmed the participation of the remaining applicants listed in paragraph 59 above.
63.  In the Government’s submissions all corpses had been initially held in the Nalchik morgue. Between 14 and 18 October 2005 the applicants examined the corpses and the clothing. From 19 October 2005 the bodies were placed in two refrigerator wagons. On 1 November 2005 the wagons were moved to the town of Rostov-on-Don for molecular genetic examinations and on 22 June 2006 all of the bodies were cremated. Between 13 and 22 October 2005 the person in charge of the identification procedure was the head of the investigation group, investigator P. From 22 October 2005 he was replaced by investigator S.
64.  According to the Government’s most recent submissions, the overall number of human casualties as a result of the events of 13 October 2005 was twelve civilians, thirty-five police and law-enforcement officers and eighty-seven participants in the attack.